The Advocate General for Scotland v Charles Milroy

A person may fall within the protection for part-time workers where, viewed as a whole, the relationship is not substantially different from an employment relationship recognised by national law. The inquiry requires consideration of both similarities and differences. The distinction from self-employment is important but not conclusive.

Less favourable treatment may be established where a part-time worker’s daily pay is calculated by reference to periods in which the full-time comparator is not actually working. A finding that treatment was on the ground of part-time status is not displaced by an employer’s administrative-cost motive where part-time status was the sole reason for selecting the worker for exclusion.

The claimant was an Army Reserve officer from 1982 until 2019. He brought complaints under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and Council Directive 97/81/EC. He alleged that his pre-April 2015 service was excluded from favourable regular-army pension schemes and that his daily rate of pay was not pro rata to that of a regular officer.

The Employment Tribunal upheld the complaints on their merits in a judgment dated 6 August 2024. The Advocate General, representing the Ministry of Defence, appealed. The appeal challenged the Tribunal’s conclusions on worker status, less favourable daily pay, and whether both detriments were on the ground of part-time status.

1. Appeal refused. The Tribunal made no error of law in concluding that the claimant was a worker for the purposes of the Directive and the Regulations.

2. The O’Brien inquiry requires the nature of the relationship to be viewed as a whole. The fact that a person is not self-employed is important but does not alone establish worker status. The Tribunal had, however, considered all material features, including payment, training obligations, direction and control, discipline, and the characteristics of the work. Its conclusion that the relationship was not substantially different from that between an employer and a worker was open to it and was not obviously wrong.

3. Regulation 13(2) of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 had to be applied subject to Council Directive 97/81/EC. Since the claimant was a worker for Directive purposes, ground 2, which depended on the contrary conclusion, failed.

4. The Tribunal was entitled to find that regular officers were not working every day of the year merely because they were permanently available for call-out. Evidence concerning the separate X Factor payment and the pay of part-time regulars supported the conclusion that basic salary did not remunerate permanent availability. Calculating a reservist’s daily pay by dividing the regular’s annual salary by 365.25 therefore produced less favourable treatment when the pro rata principle was applied.

5. The Tribunal was also entitled to find that the claimant’s part-time status was the sole ground for his exclusion from AFPS 75 and AFPS 05, and for the lower daily rate. An administrative-cost motive for selecting part-time reservists for pension exclusion did not provide an additional ground of treatment. The possible exclusion of a sub-class of full-time reservists did not undermine that conclusion.

• Employment Appeal Tribunal: appeal dismissed in [2026] EAT 25.
• Employment Tribunal (Glasgow): judgment dated 6 August 2024 upheld the claimant’s complaints on their merits.